A Train & Sons Ltd v Maxine Emma Fletcher
| Jurisdiction | England & Wales |
| Judge | Sir Mark Potter,Lord Justice Hooper,Lord Justice Moses |
| Judgment Date | 24 April 2008 |
| Neutral Citation | [2008] EWCA Civ 413 |
| Docket Number | Case No: B3/2007/0783/CCRTF |
| Court | Court of Appeal (Civil Division) |
| Date | 24 April 2008 |
[2008] EWCA Civ 413
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Manchester County Court
His Honour Judge Holman
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir Mark Potter
The President Of The Family Division
Lord Justice Hooper and
Lord Justice Moses
Case No: B3/2007/0783/CCRTF
4MA17983
Patrick Limb QC (instructed by DWF Solicitors) for the Appellant
Peter Cowan (instructed by Thompsons Solicitors) for the Respondent
Hearing date: 27 November 2007
Sir Mark Potter, P:
Introduction:
This is an appeal from the order of his Honour Judge Holman dated 2 April 2007, sitting in the Manchester County Court. It concerns his award of interest to the claimant widow in respect of her fatal accident claim arising from the death of her father, Carl Fletcher deceased, who died on 21 October 2004 from the effects of a malignant mesothelioma resulting from his exposure to asbestos in the course of his employment with the defendant. In making his award, the judge departed from the guideline laid down by the House of Lords in Cookson v Knowles [1979] AC 556 to the effect that interest on damages for loss of financial dependency under the 1976 Act should be awarded at one half of the special account rate and only on that part of the loss arising between the date of the death and the date of trial, (which I shall call the “conventional” basis). Instead, the judge made an award of interest from date of death to date of trial upon the whole sum of the damages claim including future loss. This resulted in an interest award of £29,070.37, rather than an award of £2,594.83, the sum contended for by the defendant on the conventional basis.
The particular issue argued on this appeal is whether, in departing from the Cookson v Knowles guidelines in a fatal accidents case which had no special features calling for such a departure, the judge went outside the scope of the discretion conferred upon him by virtue of Section 69 of the County Courts Act 1984. The wider issue which has also been canvassed before us is whether the time is ripe for an alteration to be made to the Cookson v Knowles guidelines whereby the multiplier should be calculated from the date of trial and not from the date of death, but Mr Cowan for the Respondent accepted that it is not open to this court to make that change.
The Claimant was the second wife of the deceased who died on 21 October 2004 at the age of fifty-six. She and the deceased had matrimonial problems during the period leading up to his death. However, at trial, the judge found that, had it not been for his terminal illness, the marriage would not have broken down and there is no appeal against that finding.
The claimant's claim for financial dependency was in the following agreed amounts: £35,184.10 in respect of the past loss of financial dependency from date of death to date of trial; £39,213.62 in respect of the further loss to the date of retirement; and £122,689.58 in respect of the loss after retirement. Those three capital sums total £197,087.30.
So far as interest rates were concerned it was agreed that the appropriate full rate from date of death to trial was 14.75%, the half rate being 7.375%.
On the question of interest, the judge heard short oral submissions from counsel on either side, during which no authority was cited, although passing reference was made to Cookson v Knowles. The judge rejected the defendant's contention that, in the usual way, the award of interest on damages for loss of financial dependency should be at half (rather than the full) rate and limited only to the past loss of financial dependency (in this case £35,184.10).
Instead, the judge agreed with the argument of the claimant that, as the whole sum of damages reflecting loss of financial dependency was in theory capable of being assessed at the date of death or shortly thereafter, interest should be awarded on the total sum of £197,087.30 at the full rate. The judge did not give a reasoned judgment but limited himself to stating that he accepted the claimant's submissions in their entirety.
Instead of awarding £2,594.83 (i.e. 7.375% x £35,184.10) on the conventional basis, he awarded £29,070.37 (i.e. 14.75% x £197,087.30) as urged by the Claimant.
This appeal proceeds with the permission of the trial judge.
The grounds of appeal
The grounds of appeal can be succinctly stated. They are that, in exercising his discretion, the judge was bound by the House of Lords decision in Cookson v Knowles [1979] AC 556 to the effect that interest on damages for loss of financial dependency under s.69 of the County Courts Act 1984 should be awarded only on that part of the loss of dependency which relates to the period between death and trial, and that, by awarding interest on periods for loss of dependency that had not arisen as at the date of trial, the Judge overlooked or ignored the clear statement of the House of Lords at 578E to H per Lord Fraser of Tullybelton that:
“… The damages for the period after the date of trial are compensation for loss of dependency which the plaintiff has not suffered at that date and .. is therefore being compensated for future loss”.
See also: per Lord Diplock at 572B.
It is the submission for the Respondent on the other hand that the observations in Cookson v Knowles in relation to the award of interest constitute a “guideline” which is neither a rule of law nor a binding principle, but a rule of practice which it is open to this court to revise in response to what is said to be a wide recognition that determination of the multiplier in a fatal accident case at the date of death causes injustice, in that it usually results in dependants being under-compensated for their loss of dependency. In this respect, we have had our attention drawn to the view of the Law Commission expressed in Chapter 4 of its report 'Claims for Wrongful Death' (Law Commn No 263) at paragraphs 4.16 – 4.25 to the effect that the multiplier in respect of post-trial losses in a fatal accidents claim should be calculated as at the date of trial rather than at the date of death. Reliance is placed upon the observation of Lord Diplock in Wright v British Railways Board [1983] 2 AC 773 that
“a guideline as to quantum of conventional damages or conventional interest thereon is not a rule of law, nor is it a rule of practice. It sets no binding precedent; it can be varied as circumstances change or experience shows that it does not assist in the achievement of even-handed justice..”
We are urged to follow and develop the approach of the House of Lords in Wells v Wells [1999] 1 AC 345 to the effect that in personal injury cases the actuarial calculations reflected in the Ogden tables should now be regarded as the starting point for the assessment of damages, and to endorse that approach as applicable to fatal accident claims, now that the Ogden tables, pursuant to the Law Commission Report, have been amended so as to offer guidance on what ought to be done when calculating damages in such cases.
It is the submission of Mr Patrick Limb QC for the appellants that the arguments in this respect were succinctly but comprehensively reviewed and dealt with in the judgment of Nelson J in White v ESAB Group (UK) Limited [2002] PIQR Q76, in which, having stated his view that the multiplier in respect of post trial losses in a fatal accidents claim should be calculated as at the date of trial rather than as at the date of death, he also stated that he was bound by authority to follow the rule set out in Cookson v Knowles and reaffirmed in Graham v Dodds [1983] 1 WLR 808 per Lord Bridge of Harwich at 815, neither of which decision had been expressly or impliedly overruled by the decision of the House of Lords in Wells v Wells. That reasoning was affirmed by this court in H v S [2002] EWCA Civ 792, [2003] QB 965 per Kennedy LJ at para 36.
The figures
Before turning to those authorities, it is appropriate to set out the figures in this case which Mr Cowan for the claimant submits illustrate the proposition that application of the guidelines in Cookson v Knowles can (and indeed generally does) lead to under-compensation of the claimant where a multiplier calculated as at the date of death is used to include both pre-trial and post-trial losses.
By the end of the trial it was either agreed, or decided by the Judge, that in the absence of mesothelioma the deceased would have lived for a further 24 years from the date of his death and that the Claimant's loss of dependency extended throughout that period because she would have outlived the deceased and would have remained dependent on him throughout. The deceased would have remained in work until he reached the age of 62 and would then have retired, giving a period from the date of retirement (May 2010) to cessation of the dependency (October 2028) of 18 years and 5 months. Based on the 24 year loss of life expectancy from date of death, the life time multiplier to be used to calculate the loss of dependency was 18.11 years, taken from the 2.5% column of table 28 of the Ogden tables.
The calculation proceeded by way of breakdown into three stages.
i) Period 1: Date of death to date of trial (October 2004 to April 2007)
This was agreed to be a period of 2.46 years and the calculation of the loss on the conventional basis (deceased's income plus widow's income x ?, minus widow's continuing income) produced the sum of £35,184.10.
(ii) Period 2: Trial to...
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